EN BANC

[G.R. Nos. 136164-65. April 20, 2001.]

THE PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs . EDGAR

LEGASPI y LIBAO , accused-appellant.

DECISION

MELO , J : p

On February 17, 1997, accused-appellant Edgar Legaspi y Libao was charged with the
crimes of rape and robbery in two separate Informations filed with Branch 170 of the
Regional Trial Court National Capital Judicial Region stationed in Malabon. The
Informations respectively read as follows:
Criminal Case No. 17640-MN
That on or about the 11th day of February, 1997, in the Municipality of Malabon,
Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused while armed with a bladed weapon, with lewd design and
by means of force and intimidation, did, then and there, wilfully, unlawfully and
feloniously have sexual intercourse with HONORATA ONG Y GUEVARRA, against
her will and without her consent.

CONTRARY TO LAW.
Criminal Case No. 17641-MN
That on or about the 11th day of February, 1997, in the Municipality of Malabon,
Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused while armed with bladed weapon, with intent to gain and
by means of force, violation and intimidation, did, then and there, wilfully,
unlawfully and feloniously take, rob and divest cash money in the amount of
P500.00 to the damage and prejudice of the said HONORATA ONG Y GUEVARRA
in the aforementioned amount of P500.00.

CONTRARY TO LAW.

(Rollo, pp. 4-5.)

Since the charges were related, the prosecution's motion that the two cases be jointly tried
was granted. For its part, the defense pointed out that accused-appellant had been
previously treated at the National Center for Mental Health from February 28 to March 2,
1996. It moved that the arraignment of accused-appellant be deferred pending
determination by the Center as to whether accused-appellant was mentally fit to stand the
rigors of trial. This motion was likewise granted.
Accused-appellant was finally arraigned on November 18, 1997, following submission of
the report dated September 1, 1997 of the National Center for Mental Health stating that
accused-appellant could stand trial. Upon his arraignment, accused-appellant pleaded not
guilty and trial thereafter ensued, with the prosecution presenting three witnesses, namely,
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 the complainant Honorata Ong, NBI Medico-Legal officer Dr. Ronaldo Mendez, and
barangay tanod Gerardo Ocampo. The defense, on the other hand, presented accused-
appellant and SPO4 Salvador Ibo.
On November 6, 1998, the trial court rendered a decision, disposing:
WHEREFORE, premises considered, judgment is hereby rendered as follows:

1. In Criminal Case No. 17640-MN, the Court finds accused Edgar Legaspi y
Libao guilty beyond reasonable doubt of the crime of RAPE, and considering the
presence of the aggravating circumstance of dwelling and nighttime, hereby
sentences him to suffer the penalty of DEATH, and to pay Honorata Ong the sum
of P50,000.00 as moral damages and P30,000.00 as exemplary damages plus
cost of the suit;
2. In Criminal Case No. 17641-MN, the Court finds accused Edgar Legaspi y
Libao guilty beyond reasonable doubt of the crime of ROBBERY and there being
the presence of the aggravating circumstance of dwelling, hereby sentences him
to suffer an indeterminate penalty of six (6) months of arresto mayor, as
minimum, to nine (9) years of prision mayor, as maximum and to pay Honorata
Ong the sum of P500.00 plus cost of suit;

SO ORDERED.

(Rollo, p. 18.)

The supreme penalty of death having been imposed for the rape, the case is now before
this Court on automatic review. As for accused-appellant's conviction for robbery,
accused-appellant did not appeal therefrom, thus, as to that portion of the judgment
against him, the same has become final and executory (Section 3[c], Rule 122).
The facts, as shown by the records, are as follows:
At around 2:00 in the morning of February 11, 1997, complainant Honorata Ong, who was
then sleeping inside her house with her three daughters, was awakened by the sound of
their door opening. She initially thought that it was her husband coming home from work.
When Honorata opened her eyes, however, she saw a man armed with a knife standing by
her feet. More terrifying, the man already had his pants and briefs down on his knees and
he was pointing to her eldest daughter. Alarmed, Honorata told the man not to touch her
daughter. The man poked his knife at her and told her to stand up and then was made to lie
down on the adjacent sofa. Thereafter, the man removed Honorata's panties and had sex
with her. All this time, he had his knife at Honorata's neck. Honorata noticed that the man
reeked of alcohol. After slaking his lust, Honorata's assailant stood up then asked for
money. Since the man still had his knife pointed at her, Honorata could do nothing but
comply. She gave him the only money she had, several bills amounting to P500.00. DAHEaT

After threatening Honorata and her daughters with death if she reports the incident, the
man left. Honorata, out of fear, could do nothing but close the door. Later that day,
however, Honorata mustered enough courage to narrate her defilement to her sister-in-law
and upon describing him, Honorata's sister-in-law exclaimed that she knew a person living
in Manapat Street fitting the description.
That afternoon, Honorata, together with her husband, reported the incident to the barangay
captain. Thereafter, the captain, along with two tanods patrolled the area and, on the next
day, they managed to nab a person who fits the description given by Honorata of her
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 assailant. When the suspect was brought to the barangay hall for confrontation, he was
positively identified by Honorata as the rapist. This person, later identified as accused-
appellant Edgar Legaspi y Libao, was thus detained by the police.
The next day, Honorata had herself medically examined at the NBI but no evident signs of
extra-genital physical injuries were found on her body.
On the other hand, all that accused-appellant could interpose as defenses were denial and
alibi, stating that at the time of the alleged incident, he was at his home in Manapat Street
sleeping. Accused-appellant also testified that he had been previously convicted of
homicide and Roberto Eugenio, the victim therein, was a resident of the exact same
address where complainant Honorata was living. Accused-appellant hinted at the
possibility that relatives of Roberto Eugenio had conspired with complainant Honorata to
get rid of him.
Incidentally, Rivera Street where the alleged crime occurred is only two streets away from
Manapat. Moreover, aside from Honorata's address, accused-appellant did not present
proof that the relatives of Roberto Eugenio knew complainant Honorata.
Given the above circumstances, the trial court, as earlier mentioned, found accused-
appellant guilty of rape aggravated by dwelling and nighttime, and of robbery aggravated
by dwelling; and thereupon, imposed upon him the supreme penalty of death for the rape,
and an indeterminate penalty of six months to nine years for the robbery.
Accused-appellant's plea for reversal is founded on the arguments that his guilt was not
shown beyond reasonable doubt, and that complainant Honorata's testimony is replete
with inconsistencies. He also insists on his alibi and alleged insanity.
We have carefully reviewed the record and we find the above contentions devoid of merit.
In support of his first, second, and third assigned errors, which accused-appellant
discussed jointly, he points to the discrepancies between Honorata's testimony in open
court and the entry in the police blotter. Accused-appellant harps on the fact that as
described in the blotter, the alleged rapist had an "ala Babalu face" (having an attenuated
chin similar to that of the late comedian Babalu) and a mole on the upper left part of his
lips, while accused-appellant is not "Babalu" and his mole is located not on the left but on
the right side of his face.
That the facial features of accused-appellant differ from the description of Honorata's
assailant as found in the police blotter detracts not a whit from the credibility of
Honorata's testimony. It must be kept in mind that Honorata positively identified accused-
appellant as her rapist, not only during the investigation conducted by the police on the
morning of January 15, but also during the trial. At the Malabon Police Station, Honorata
identified accused-appellant thus:
T: Bakit naman po kayo nandito ngayon sa aming himpilan at nagbigay ng
malaya at kusang loob na salaysay?
S: Para po ipagharap ng reklamo ang taong ito (affiant pointing/identifying
person of EDGAR LEGASPI y LIBAO, @ EGAY, 29 years old, single, jobless,
and residing at No. 86 Manapat Street, Barangay Tanong, Malabon, MM
who is presently inside this room).

T: Ito po bang taong ito ay dati na ninyong kilala?

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 S: Hindi po.
T: Bakit naman po ninyo gustong ipagharap ng reklamo ang taong ito?
S: Ni rape niya ako.
(Original Record, p. 80.)

During the trial, Honorata likewise identified accused-appellant as the person who sexually
violated her. She testified that she was able to recognize accused-appellant because the
fluorescent lamp inside her house was lit at the time of the incident.
Q: It was dark. Why were you able to see that person?

A: Because the light inside the house is on, sir.

Q: And you saw that person?
A: Yes, sir.

(tsn, August 18, 1998, p. 3.)

Likewise, we have heretofore held that a man and a woman cannot be physically closer to
each other than during the sexual act (People vs. Fuertes, 296 SCRA 602 [1998]). We thus
have on record Honorata's positive identification of accused-appellant as her assailant.
Coupled with the oft-quoted doctrine that entries in police blotters, though regularly done
in the course of the performance of official duty, are not conclusive proof of the truth
stated in such entries since they are usually incomplete and inaccurate (People vs. Padlan,
290 SCRA 388 [1998]), we hold that any discrepancy in the police blotter entry and the
open court testimony of Honorata does not affect her credibility.

It must also be remembered that the entry in the police blotter was made at 6:30 on the
morning of February 12, 1997, only a few hours after the rape and robbery. At that time,
Honorata may not have yet fully recovered from the traumatic ordeal she had gone
through, resulting in an inaccurate entry in the police blotter: Besides, minor lapses are to
be expected when a person is recounting details of a traumatic experience too painful to
recall (People vs. Sta. Ana, 291 SCRA 188 [1998]).
On the other hand, accused-appellant claims that if Honorata were indeed raped on the
sofa of her one-room house, the creaking of the sofa and her moans would have awakened
her three sleeping daughters. He asserts that, strangely, this did not happen.
That Honorata's daughters, aged 3, 6, and 9 years, did not wake up during the assault is not
as incredible as accused-appellant would make it out. The failure of the three children to
wake up during the commission of the rape was probably due to the fact that they were
sound asleep. It is not unusual for children of tender ages to be moved from their sleeping
mats and transferred to another bed without eliciting the least protest from them, much
less, awakening them (People vs. Mustacisa, 159 SCRA 227 [1988]). It is also to be noted
that among poor couples with big families living in small quarters, copulation does not
seem to be a problem despite the presence of other persons around them. One may also
suppose that growing children sleep more soundly than grown-ups and are not easily
awakened by adult exertions and suspirations in the night (People vs. Ignacio, 233 SCRA 1
[1994]).

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 As to accused-appellant's submission that the absence of spermatozoa in Honorata's
organ negates the commission of rape, the same rings hollow, the presence or absence of
spermatozoa being immaterial in the prosecution of a rape case, as it is well-settled that it
is penetration, however slight, and not ejaculation, that constitutes rape (People vs. dela
Paz, Jr., 299 SCRA 86 [1998]). That there was penetration is shown by Honorata's
testimony, thus:
Q: When he removed your panty what did he do next?
A: He inserted his organ in mine, sir.
Q: How did you come to know it was his penis that entered your private part?

A: I felt pain, sir.

(tsn, August 18, 1998, p. 5.)

Finally, accused-appellant contends that Honorata lied when she claimed not having known
accused-appellant or his family prior to the incident. Accused-appellant takes this to be
indicative that Honorata plotted with the family of Roberto Eugenio to get rid of him. As
proof of Honorata's alleged prevarication, accused-appellant presented the voter's
registration record of a certain Roberto Eugenio, allegedly accused-appellant's victim in a
homicide case four years prior to the incident in question, indicating that Roberto's
address was 27-D Rivera Street, Taong, Malabon, Metro Manila, the exact same address
of Honorata.
Accused-appellant has not presented proof that Honorata knew Roberto Eugenio or his
relatives. Neither has he shown that any relative of Eugenio still resides at Honorata's
address, 27-D Rivera Street. Moreover, mere residence at the same address is not proof
that Honorata conspired with the relatives of Roberto Eugenio in an attempt to get rid of
accused-appellant. False testimony or incriminatory machinations must be proved by
evidence more substantial than a voter's registration record.
In his defense, accused-appellant raises the defense of alibi, claiming that he was asleep at
his house at #86 Manapat Street, Taong, Malabon at the time of the incident. Accused-
appellant's defense of alibi must, however, be looked upon with suspicion, not only
because it is inherently weak and unreliable, but also because it can be easily fabricated
and concocted (People vs. Tulop , 289 SCRA 316 [1998]). For alibi to prosper, the accused
must prove not only that he was at some other place at the time of the commission of the
crime, but also that it was physically impossible for him to be at the locus delicti or within
its immediate vicinity (People vs. Ballesteros, 285 SCRA 438 [1998]). HITEaS

In the case at bar, accused-appellant has failed to meet both requisites. Aside from his
testimony that he was asleep at the time of the incident, no other witness came forward to
corroborate his version. Moreover, Manapat Street is only two streets away from
Rodriguez Street, the scene of the crime. Accused-appellant even admitted during the trial
that this was only a five-minute walk from his residence. Counterbalanced against
Honorata's conduct immediately after the incident and her positive identification of
accused-appellant as her assailant, accused-appellant's defense of alibi is unavailing. In
the words of the trial court:
Honorata did not know the accused before the incident. She immediately revealed
the fate that befell on her to her sister-in-law. They then reported the incident to
the barangay and thereafter to the police authorities; executed a sworn statement;
submitted herself to a physical examination by a Medico-Legal Officer of the NBI;
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 and subscribed and swore to a complaint for rape which would necessarily result
in her exposure to the rigors of public trial. The spontaneity of these acts clearly
demonstrates her sincere desire to bring the accused to justice. Moreover, no
married woman in her right mind would subject herself to public scrutiny and
humiliation in order to perpetuate a falsehood. Neither would she take the risk of
being alienated from her husband and family had she not been violated and
robbed of her money.
(RTC Decision, p. 4-5.)

In accused-appellant's last assignment of error, he claims that the court a quo erred in not
ruling that he is entitled to the exempting circumstance of insanity. For insanity to be
considered, Paragraph 1, Article 12 of the Revised Penal Code requires a complete
deprivation of rationality in committing the act, i.e., that the accused be deprived of reason,
that there be no consciousness of responsibility for his acts, or that there be complete
absence of the power to discern. The defense of insanity or imbecility must be clearly
proved, however, for there is a presumption that acts penalized by law are voluntary
(People vs. Medina, 286 SCRA 44 [1998]).
To prove his insanity, accused-appellant's counsel points to his confinement at the
National Center for Mental Health prior to the incident in question. Likewise, his counsel
claims that when Honorata saw accused-appellant, the latter's pants and briefs were
already down on his knees. He takes this to be an indicium of insanity. DCSTAH

Mere prior confinement does not prove that accused-appellant was deprived of reason at
the time of the incident. Firstly, accused-appellant did not submit proof that he was
adjudged insane by the National Center for Mental Health, only that he had been confined
therein. Note also that accused-appellant had already been discharged from the Center
prior to the incident. Even if accused-appellant were adjudged insane prior to the incident,
his discharge implies that he was already considered well. In fact, the psychiatric
evaluation report of accused-appellant states that his disorder "runs a chronic course with
periods of exacerbations and remissions." If the insanity is only occasional or intermittent
in nature, the presumption of its continuance does not arise. He who relies on such insanity
proved at another time must prove its existence also at the time of the commission of the
offense (People vs. Bonoan, 64 Phil. 87). This, accused-appellant has failed to do.
Neither does having one's pants and briefs on one's knees indicate deprivation of reason.
If anything else, it shows the lechery and depravity of accused-appellant. Mental depravity
which results not from any disease of the mind, but from a perverted condition of the
moral system, where the person is mentally sane, does not exempt one from responsibility
for crimes committed under its influence (People vs. Medina, supra). The Court cannot,
therefore, appreciate the defense of insanity brought by accused-appellant.
In sum, we find that the trial court did not err in finding Honorata's testimony to be clear,
straightforward, and worthy of credence, and consequently, in finding accused-appellant
guilty beyond reasonable doubt of the crime of rape.
We now come to the proper penalty. Under Article 335 (now Article 266-B) of the Revised
Penal Code, "whenever the crime of rape is committed with the use of a deadly weapon or
by two or more persons, the penalty shall be reclusion perpetua to death."
According to the trial court:
The rape charge was committed in the victim's dwelling at nighttime. Dwelling
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 and nighttime are aggravating circumstances in rape (People vs. Padilla 242
SCRA 629). On the other hand, the aggravating circumstance of nighttime cannot
be appreciated in the robbery charge because of (sic) the notion to commit the
crime was conceived only shortly when the rape was committed at darkness.
However, the aggravating circumstance of dwelling is a different story and should
be considered. Dwelling is aggravating in robbery with violence against or
intimidation of person because this class of robbery can be committed without
the necessity of trespassing the sanctity of the offended party's house. Entrance
into the dwelling house of the offended party is not an element of the offense
(People vs. Cabato 160 SCRA 98). Finally, for sexually assaulting a married
woman thereby grievously wronged (sic) the institution of marriage, the
imposition of exemplary damages by way of example to deter others from
committing the crime is just (sic) warranted.
(RTC Decision, pp. 5-6.)

Considering the presence of the aggravating circumstances of nighttime and dwelling, the
trial court imposed the supreme penalty of death on accused-appellant for the crime of
rape.
However, a cursory examination of the Information filed against accused-appellant would
show that the aggravating circumstances of nighttime and dwelling are not specified
therein. Now, at the time the trial court rendered its decision, the non-allegation of generic
aggravating circumstances in the information was immaterial, since the rule then prevailing
was that generic aggravating circumstances duly proven in the course of the trial could be
taken into account by the trial court in determining the proper imposable penalty even if
such circumstances were not alleged in the information (People vs. Deberto, 205 SCRA
291 [1992]).

Nonetheless, it is to be noted that the appreciation by the trial court of the aggravating
circumstances of dwelling and nighttime, despite the non-allegation thereof in the
Information, resulted in the imposition of the supreme penalty of death upon accused-
appellant. In People v. Gallego (G.R. No. 130603, August 15, 2000), We had occasion to
rule, thus:
In People v. Albert (251 SCRA 136 [1995]), we admonished courts to proceed with
more care where the possible punishment is in its severest form death
because the execution of such a sentence is irrevocable. Any decision authorizing
the State to take life must be as error-free as possible, hence it is the bounden
duty of the Court to exercise extreme caution in reviewing the parties' evidence.
Safeguards designed to reduce to a minimum, if not eliminate, the grain of
human fault ought not to be ignored in a case involving the imposition of capital
punishment for an erroneous conviction "will leave a lasting stain in our
escutcheon of justice." The accused must thence be afforded every opportunity to
present his defense on an aggravating circumstance that would spell the
difference between life and death in order for the Court to properly "exercise
extreme caution in reviewing the parties' evidence." This, the accused can do only
if he is appraised of the aggravating circumstance raising the penalty imposable
upon him to death. Such aggravating circumstance must be alleged in the
information, otherwise the Court cannot appreciate it. The death sentence being
irrevocable, we cannot allow the decision to take away life to hinge on the
inadvertence or keenness of the accused in predicting what aggravating
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 circumstance will be appreciated against him.
In a series of cases under the regime of Rep. Act No. 7659, the Court did not
appreciate the aggravating circumstance of dwelling which would have increased
the imposable penalty to death when such circumstance was not alleged in the
information. In People v. Gaspar, et al. (318 SCRA 649 [1999]), the Court found
that apart from treachery, dwelling also attended the killing of the victim. Despite
this finding and the absence of any mitigating circumstance, the Court
nonetheless did not appreciate dwelling and-imposed the penalty of reclusion
perpetua and not the greater penalty of death. Hence, in the case at bar,
considering that the aggravating circumstance of dwelling was not alleged in the
information, we cannot appreciate it and raise the penalty imposed upon Raul
Gallego from reclusion perpetuato death.
(Emphasis supplied.)

The principle above-enunciated is applicable to the case at bar. Consequently, we hold that
due to their non-allegation in the Information for rape filed against accused-appellant, the
aggravating circumstances of nighttime and dwelling cannot be considered in raising the
penalty imposable upon accused-appellant from reclusion perpetua to death.
Parenthetically, the above rule is inapplicable for the crime of robbery committed by
accused-appellant, the same not involving the imposition of the death penalty. For said
crime, what remains applicable is the old rule that generic aggravating circumstances if
duly proven in the course of the trial could be taken into account by the trial court in
determining the proper imposable penalty, even if such circumstances were not alleged in
the Information. Thus, for the crime of robbery, the trial court correctly imposed an
indeterminate penalty of six (6) months of arresto mayor, as minimum, to nine (9) years of
prision mayor, as maximum.
It is to be noted carefully that the rule on generic aggravating circumstances has now been
formalized in the Revised Rules of Criminal Procedure, which took effect on December 1,
2000. Section 8 of Rule 110 now provide that:
SECTION 8. Designation of the offense. The complaint or information
shall state the designation of the offense given by the statute, aver the acts or
omissions constituting the offense, and specify its qualifying and aggravating
circumstances. If there is no designation of the offense, reference shall be made
to the section or subsection of the statute punishing it.
(Emphasis supplied.)

Likewise, Section 9 of the same Rule provides:

SECTION 9. Cause of the accusation. The acts or omissions complained
of as constituting the offense and the qualifying and aggravating circumstances
must be stated in ordinary and concise language and not necessarily in the
language used in the statute but in terms sufficient to enable a person of
common understanding to know what offense is being charged as well as its
qualifying and aggravating circumstances and for the court to pronounce
judgment.
(Emphasis supplied.)

Sections 8 and 9 were discussed by this Court En Banc on June 20, 2000. According to the
minutes of said session:
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 Justice Puno then invited the attention of the Court to Sections 8 and 9 of Rule
110. He explained that the proposal requiring the allegation of qualifying
circumstances in the information reflects the recent decisions of the Court,
especially in heinous crimes. However, the Court concerned itself with the
proposed requirement of likewise alleging aggravating circumstances in the
information. Justice Panganiban raised the question of what to do with an
aggravating circumstance which was not alleged but was proved and not
objected to during trial. Justice Melo answered that it cannot be used to increase
the penalty if it was not alleged even if proved. Justice Puno explained that the
proposal strengthens the right to due process of an accused, part of which is to
be shielded from surprises.
Chief Justice Davide and Justice Panganiban agreed and emphasized that the
presence of aggravating circumstances can make the difference between life and
death where the imposable penalty is reclusion temporal maximum to death or
reclusion perpetua to death. Justice Panganiban added that the prosecutors will
now be compelled to prepare well-worded information. cHAIES

To make sure that the circumstances that need to be alleged are not missed out
in the information, Justice Mendoza suggested that the Court can prescribe an
updated form in the Rules of Court.
(Emphasis supplied.)

Thus, the Rules now require qualifying as well as aggravating circumstances to be

expressly and specifically alleged in the Complaint or Information, otherwise the same will
not be considered by the court even if proved during the trial. And this principle is
applicable in all criminal cases, not only in cases were the aggravating circumstance would
increase the penalty to death. With this, the Court gives fair warning to prosecutors that
henceforth, they must prepare well-crafted information that allege the circumstances
qualifying and aggravating the crimes charged, otherwise the same will not be considered
by the court in determining the proper imposable penalty.
The Court further notes that while the trial court awarded the victim the sum of P50,000.00
as moral damages and P30,000.00 as exemplary damages, it failed to award civil
indemnity to the victim. Prevailing jurisprudence holds that in rape cases, the victim should
be awarded P50,000.00 as civil indemnity and another P50,000.00 as moral damages for
the injury evidently suffered. Moreover, the fact that the victim was raped inside her house
in the presence of her children justifies the trial court's imposition of exemplary damages.
WHEREFORE, premises considered, the decision under review finding accused-appellant
EDGAR LEGASPI y LIBAO guilty beyond reasonable doubt of the crime of rape in Criminal
Case No. 17640-MN is AFFIRMED with the MODIFICATION that he is sentenced to suffer
the reduced penalty of reclusion perpetua and to pay Honorata Ong the sum of Fifty
Thousand pesos as civil indemnity, another Fifty Thousand Pesos (P50,000.00) as moral
damages and Thirty Thousand Pesos (P30,000.00) as exemplary damages.
No special pronouncement is made as to costs.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Buena, Gonzaga-Reyes, Ynares-Santiago and Sandoval-Gutierrez, JJ.,
concur.

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 Pardo, J., on sick leave.
De Leon, Jr., J., is on leave.

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